New York State Rifle & Pistol Assoc. v. City of New York: Oral Args 12-2-19

[abinsinia]

Originally Posted by press1280

Even if it is mooted the 2nd circuit opinion will be vacated.

With nothing added in it's place ?

[press1280]

Originally Posted by abinsinia

With nothing added in it's place ?

Correct. See Musingwear orders.

[Phiremin]

Originally Posted by press1280

Even if it is mooted the 2nd circuit opinion will be vacated.

But not the “test” created by circuit courts to determine if a gun control law passes constitutional muster, which is “intermediate scrutiny”. And everything passes intermediate scrutiny. And that is the real issue at stake here, not some silly NYC law which impacts a handful of people.

[kuug]

Originally Posted by bruss01

I was VERY surprised at the plaintif's lawyers and a potentially costly error made very early in this case. One of the issues involving mootness is that plaintifs have the right to ask to be paid "damages" they suffered as a result of the law at issue. However, the suit as filed, does not make any damages claims. This is potentially important to whether the case is moot or not. The Solicitor General (SG) had remarked in a brief that one reason the case is not "moot" even though the law has been taken off the books is because the plaintifs can still potentially recover damages. The Justices in discussion raised the issue that they haven't filed for damages, and you want to file for them NOW, not at just the 11th hour, but at 11 : 59 : 45? That didn't come off sounding kosher. Note to all future 2A defending attorneys... FILE FOR DAMAGE CLAIMS AT THE OUTSET, ON DAY ONE. You may be glad you did later.

And the same can't be said for NYC's last second hail Mary? Why are only we held to standard?

[Sputnik]

Originally Posted by kuug

And the same can't be said for NYC's last second hail Mary? Why are only we held to standard?

I believe there are four justices that agree with you. Four others are willing to allow a double standard. Roberts? Maybe he thinks he can maintain a status quo and avoid looking political? Too bad for him it already looks political no matter what he does.

[boxcab]

If the case is considered moot, does not NY still have to pay the legal fees?






.

[pistol3]

Originally Posted by Phiremin

Because Roberts needed to hear those assurances that this law is dead, won’t be resurrected and no past infractions will be held against anyone (although I’m not sure how that is enforced short of running another case up to SCOTUS, which could take years and who knows what the court will look like then). He is expecting a vigorous dissent from Thomas and Gorsuch and needed this hearing as cover.

This part also doesn't make sense to me. Since everyone knows this is really about avoiding setting a national precedent for a right to bear arms outside of the home, Roberts should know that NYC is going to say whatever they think he wants to hear. None of their answers are surprising or interesting.

[press1280]

Originally Posted by Phiremin

But not the “test” created by circuit courts to determine if a gun control law passes constitutional muster, which is “intermediate scrutiny”. And everything passes intermediate scrutiny. And that is the real issue at stake here, not some silly NYC law which impacts a handful of people.

True, although this case didn't create that particular test. It was already in place in the 2nd Circuit from an earlier one.

[press1280]

Originally Posted by boxcab

If the case is considered moot, does not NY still have to pay the legal fees?






.

Plaintiffs didn't ask for damages, so I guess not, other than their own attorney fees.

[bruss01]

Originally Posted by press1280

Plaintiffs didn't ask for damages, so I guess not, other than their own attorney fees.

Quite frankly I'm astounded that such mistakes/oversights are made in such a nationally significant case. Nobody checked their homework to see if I's dotted and T's crossed? No attorney who has read all the briefs and is passionately following this case didn't notice or say something?

We all should know by now that the anti's will try every trick in the book to thwart good 2A jurisprudence... and a few that aren't in ANY book. This is a trick that others have employed previously (mooting by withdrawing the law after a lower court win) to avoid precedent. NOBODY saw this coming?

To me that just says sloppy, over-confident attorneys. If they lose, I hope that's how they get labeled, losing a major case with national implications, because they neglected to anticipate this kind of dirty-trick & foul play.

[boxcab]

Originally Posted by press1280

Plaintiffs didn't ask for damages, so I guess not, other than their own attorney fees.

Yes, attorney fees is what I was asking about.

Thank you.





.

[SteveH]

This is all very discouraging. I'm getting older. Might never see judicial relief in my lifetime.

[thedrickel]

I was thinking, this isn't the first time the antis have brought the mootness trick out at the last minute. They did the same thing at the (third?) Nordyke orals at the 9th circuit when the county's lawyer, out of the blue, said they would allow guns at the fairgrounds if they were tethered to the table. Which nearly immediately mooted the heart of the case

[TruOil]

Originally Posted by thedrickel

I was thinking, this isn't the first time the antis have brought the mootness trick out at the last minute. They did the same thing at the (third?) Nordyke orals at the 9th circuit when the county's lawyer, out of the blue, said they would allow guns at the fairgrounds if they were tethered to the table. Which nearly immediately mooted the heart of the case

I thnk it did moot the heart of the case--and since it was in the middle of oral arguments, the appellate panel was mightily torqued.

[aBrowningfan]

Originally Posted by SteveH

This is all very discouraging. I'm getting older. Might never see judicial relief in my lifetime.

Wheels of justice turn slowly. Depending on your age and any medical issues, relief in your lifetime might entail a move to a more 2A-friendly state.

[The Soup Nazi]

One question which wasn't really addressed by NYC during the oral arguments was what prevents NYS from simply implementing the law again after the case is rendered moot.

While an argument exists that the controversy is gone because Dearing has testified that certain deviations of "direct and continuous" will not be prosecuted (promissory estoppel likely applies when you make that claim to the Supreme Court), he never promises that NYS can't just pass regulation again back to the status quo. That's the heart of what Clement's desire for relief in the form of a declaration of unconstitutionality amounts to, but I'm perplexed as to why NYC wasn't pushed on this by any of the justices.

[bruss01]

Originally Posted by The Soup Nazi

One question which wasn't really addressed by NYC during the oral arguments was what prevents NYS from simply implementing the law again after the case is rendered moot.

While an argument exists that the controversy is gone because Dearing has testified that certain deviations of "direct and continuous" will not be prosecuted (promissory estoppel likely applies when you make that claim to the Supreme Court), he never promises that NYS can't just pass regulation again back to the status quo. That's the heart of what Clement's desire for relief in the form of a declaration of unconstitutionality amounts to, but I'm perplexed as to why NYC wasn't pushed on this by any of the justices.

It was addressed. NY State passed a law prohibiting the City from doing so.

Of course nothing prevents the state from rescinding the state law.

But the State is not party to this suit, so questions about what the state will or will not do in the future are out of scope.

See what they did there?

[wannabefree]

Originally Posted by aBrowningfan

Wheels of justice turn slowly. Depending on your age and any medical issues, relief in your lifetime might entail a move to a more 2A-friendly state.

Moving to another state is not a practical solution nor possible for many of us. We have roots that you just don,t run away from with our tails between our legs.

[EM2]

Originally Posted by SteveH

This is all very discouraging. I'm getting older. Might never see judicial relief in my lifetime.

[MEGSDAD]

Pardon my ignorance, but doesn't controversy still exist?
If NY isn't smacked down what's to stop any other city or state from trying this same crap? Or can that avenue even be brought up before the court?

[abinsinia]

Originally Posted by bruss01

It was addressed. NY State passed a law prohibiting the City from doing so.

Of course nothing prevents the state from rescinding the state law.

But the State is not party to this suit, so questions about what the state will or will not do in the future are out of scope.

See what they did there?

It's pretty obvious that the state was working on behalf of New York City. To me the fact that they did all this just indicates more they have devious plans. Either they will reimplement the law, or they want to allow some other jurisdiction to implement similar laws. Without a SCOTUS ruling no one is safe.

[randomBytes]

Originally Posted by abinsinia

Without a SCOTUS ruling no one is safe.

Even with a nice ruling - are we safe? Post heller experience would suggest not.

[Robotron2k84]

Judge Nap. (despite his beef with Trump) is more sanguine on NYSRPA than others have been:

A group of New York City gun owners challenged the law as a material interference with their Second Amendment rights. Some of the owners had second homes in New Jersey and elsewhere in New York state where the ownership of their New York City-licensed guns is legal, but they could not lawfully transport their guns out of New York City.

After the ordinance challenge failed in a federal district court and again in a federal appellate court in Manhattan, the gun owners asked for permission to appeal to the Supreme Court, which was granted. Then the city, fearing a reversal and invalidation of its ordinance, repealed the ordinance and enacted a new one in its place.

The new ordinance permitted transportation of New York City-licensed guns to places outside of the city where the guns are lawful, but required the owners to transport them there without stopping, in one complete trip. Can one stop for coffee, or for nature, or to visit mom? No.

Does any of this sound as if the government of New York City recognizes and respects the right to keep and bear arms? Of course not. So, why did the city change its gun ordinance? Why did it give the gun owners at the last minute before their case was to be heard almost all they sought? Because of the doctrine of "standing."

“Standing” is a constitutional requirement of the existence of real adversity between litigants. Federal courts do not hear theoretical cases. They are required by the Constitution to hear cases and controversies in which the moving party can show that real harm has been caused by the responding party.

So, at the time of oral argument in the Supreme Court earlier this week, there was no such adversity between the gun owners and the city because the ordinance that the owners challenged no longer exists. Thus, the city asked the court to dismiss the appeal. Under usual circumstances, the court would do so.

In a famous New Jersey case, the lawyers finished oral argument before the Supreme Court and on their way out of the courthouse settled the case. That quick and amicable settlement divested the court of jurisdiction over the case because there was no longer a controversy and no one had standing to bring the appeal.

Will the New York City gun owners suffer the same fate? Perhaps not. There is a little-known and rarely used exception to the standing requirement -- a judge-made exception -- that holds that if a dispute repeatedly comes to the Supreme Court or if lower federal courts are repeatedly misinterpreting a Supreme Court decision, the Supreme Court will hear an appeal to stop the repeated appeals or to correct lower court misunderstandings, even if there is no adversity between the parties.

Have lower federal courts been misinterpreting the Heller and McDonald cases? Yes. By one study, they have ruled 96 percent of the time in favor of city and state gun restrictions in the home and against the pre-political nature of the right to self-defense.

Are there constitutional implications in this case beyond standing? Yes. Heller and McDonald uphold the right to keep and bear arms only in and around one's home. If the gun owners in this New York City case prevail, that right could be extended to public places outside the home, where police acknowledge that armed and well-trained civilians are most valued today.

https://www.foxnews.com/opinion/judg...keep-bear-arms

[SDCarpenter]

There's one grey shining star left apparently

[Sputnik]

One thing from the transcript that I noticed was NY's atty telling the court how good it was that NY was listening to it's citizens and how repealing the law at issue was a sign of how democracy should work (I paraphrase).
My first thought being that IF NY cared so mightily they could have changed the law when they were initially sued at Fed. District court, or they could have changed the law when the case was taken up at the 2nd circuit Court of Appeals...
but they didn't.
So it seems a bit disingenuous and suspect that they change it now.
Is there some new information available to the city now that wasn't available previously that has suddenly enlightened them as to the propriety of the law in question? I think not.
So...allowing the case to be mooted at this late stage; that would require a good deal of dedication to the cause (gun control) since allowing it will do a good deal of damage, and not just to the 2A.

[kuug]

Originally Posted by Sputnik

One thing from the transcript that I noticed was NY's atty telling the court how good it was that NY was listening to it's citizens and how repealing the law at issue was a sign of how democracy should work (I paraphrase).
My first thought being that IF NY cared so mightily they could have changed the law when they were initially sued at Fed. District court, or they could have changed the law when the case was taken up at the 2nd circuit Court of Appeals...
but they didn't.
So it seems a bit disingenuous and suspect that they change it now.
Is there some new information available to the city now that wasn't available previously that has suddenly enlightened them as to the propriety of the law in question? I think not.
So...allowing the case to be mooted at this late stage; that would require a good deal of dedication to the cause (gun control) since allowing it will do a good deal of damage, and not just to the 2A.

And to think, even after all this time and all the Kavanaugh and Gorsuch confirmation bull**** we might STILL be looking at a lost cause because Roberts is enough of a worm to moot the case.

[Fedora]

Originally Posted by wannabefree

Moving to another state is not a practical solution nor possible for many of us. We have roots that you just don,t run away from with our tails between our legs.

Interesting. I've never thought of it as running away from . . . more like running towards.

[pgg]

Originally Posted by kuug

And to think, even after all this time and all the Kavanaugh and Gorsuch confirmation bull**** we might STILL be looking at a lost cause because Roberts is enough of a worm to moot the case.

Just imagine where we'd be if Hillary Clinton had appointed Justices to fill those positions.

We'd have a 3-6 minority on the Court and Australia-style confiscation would be happening one state at a time (look at Virginia trying to outdo California and NY right now!), until a Dem Pres / Dem Congress happened to come into being (it'll happen at some point) and take it nationwide.

The last 3 years have been good ones for the 2A. Much of the progress made has been in changing the makeup of federal courts not named SCOTUS, and we'll see the effects of that tilt in our favor over the next decade+.

Even if this case is mooted, there are other cases - better ones - waiting to be taken up by SCOTUS. Odds are, RBG's seat will be empty or perhaps even filled by another Trump appointee.

Sotomayor, Kagan, and Breyer can only do so much damage with three whole votes.

Don't despair. This is what the middling stage of winning looks like.

[1911su16b870]

OK I am not a constitutional lawyer or historian, but...on my plain reading of the oral argument transcipt, the last line (page 73, line 23) Chief Justice Roberts says "The case is submitted" meaning - the SCOTUS will rule on it.

I think it's transparent NYC wants a moot case in order to prevent an unfavorable SCOTUS verdict, and the Justices will rule on in and it won't be a moot decision. They will decide on this case and other constitutional issues in their verdict...we will see.

[LBDamned]

Originally Posted by wannabefree

Moving to another state is not a practical solution nor possible for many of us. We have roots that you just don,t run away from with our tails between our legs.

Originally Posted by Fedora

Interesting. I've never thought of it as running away from . . . more like running towards.

It's a defense mechanism that those who can't move use.

Happens all the time here. We all know its BS - but it makes those who are stuck in CA feel better.

[mrrabbit]

Originally Posted by 1911su16b870

OK I am not a constitutional lawyer or historian, but...on my plain reading of the oral argument transcipt, the last line (page 73, line 23) Chief Justice Roberts says "The case is submitted" meaning - the SCOTUS will rule on it.

I think it's transparent NYC wants a moot case in order to prevent an unfavorable SCOTUS verdict, and the Justices will rule on in and it won't be a moot decision. They will decide on this case and other constitutional issues in their verdict...we will see.

I still stand by my expectation that AT A MINIMUM, SCOTUS will rule on the property rights aspect.

There's property.
There's who owns the property.
There's who has controlling interests in the property.

NYC is basically behaving as though they have a controlling interest in property that is 100% owned by a private citizen - and I expect SCOTUS to slap that down at the very least.

But many here at Calguns and Charles Nichols think that SCOTUS is going to go beyond that - I'm not going to deny that possibility.

"Good Morning" homeless people of New York!

=8-)

[ironpegasus]

Originally Posted by LBDamned

It's a defense mechanism that those who can't move use.

Happens all the time here. We all know its BS - but it makes those who are stuck in CA feel better.

Precisely. I have family and historical ties to California. But at some point I decided that for my kid, I needed to get out of the toxic cesspool that is that state. If for no other reason than to see that she got to see there is another side to the world than the insane liberal bubble that most Californians are forced to live in.

I may have been too late though - she went on to one of the most liberal colleges in the nation. However, she occasionally calls me and complains about how goo-goo their policies are and remarking about how intolerant the "tolerant ones" are, so there is hope that not all is lost yet.

On the plus side for me, I'm making more money now than I ever did, cost of living is lower, I've at least tripled my firearms collection in the last couple years, all with stuff that CA views as verboten and even added a few cans. Life is good.

Roots are important - but without fertile ground for the tree to grow in, the plant still dies. California has no water (literally and figuratively) and is full of toxic mess. Quit kidding yourself that you're fighting the good fight - vote fraud, rigged courts, illegal (and legal) immigration and public corruption have got you covered and neutralized every way possible. Get out, let the state collapse and recolonize in the aftermath.

[ironpegasus]

Originally Posted by mrrabbit

I still stand by my expectation that AT A MINIMUM, SCOTUS will rule on the property rights aspect.

There's property.
There's who owns the property.
There's who has controlling interests in the property.

NYC is basically behaving as though they have a controlling interest in property that is 100% owned by a private citizen - and I expect SCOTUS to slap that down at the very least.

But many here at Calguns and Charles Nichols think that SCOTUS is going to go beyond that - I'm not going to deny that possibility.

"Good Morning" homeless people of New York!

=8-)

One would hope so. But in order to do that they'd have to probably paint with some broad strokes that weren't asked for in the prayer for relief. They'd have to strike down the premises permit as unconstitutional and in so doing, the Illinois FOID card, and the MD and NJ (and probably several other) analogues. Hopefully if they did that, they'd also go so far as to make the FSC illegal or at least any fee to acquire one illegal.

But the only way to accomplish that and not have it back in court for a slightly reworded copycat law three days later is to define a tighter standard for interpreting 2A cases going forward. I think ultimately any 2A case heard by the Supreme Court is going to have to have that standard well defined or else we'll just keep seeing the lower courts doing what they're doing. At least 4 justices seem to recognize that fact and the real question is if Roberts is on-board with them or wants to continue to see the USSC slide into irrelevance.

[SteveH]

Originally Posted by pgg

Just imagine where we'd be if Hillary Clinton had appointed Justices to fill those positions.

We'd have a 3-6 minority on the Court and Australia-style confiscation would be happening one state at a time (look at Virginia trying to outdo California and NY right now!), until a Dem Pres / Dem Congress happened to come into being (it'll happen at some point) and take it nationwide.

The last 3 years have been good ones for the 2A. Much of the progress made has been in changing the makeup of federal courts not named SCOTUS, and we'll see the effects of that tilt in our favor over the next decade+.

Even if this case is mooted, there are other cases - better ones - waiting to be taken up by SCOTUS. Odds are, RBG's seat will be empty or perhaps even filled by another Trump appointee.

Sotomayor, Kagan, and Breyer can only do so much damage with three whole votes.

Don't despair. This is what the middling stage of winning looks like.

You are probably right. I just don’t understand why it takes so long when it’s gun laws. How many cases are on hold right now until NYSRPA is resolved?

[wireless]

Originally Posted by SteveH

You are probably right. I just don’t understand why it takes so long when it’s gun laws. How many cases are on hold right now until NYSRPA is resolved?

5 or 6

[helicalite]

This guy's tracker thing seems pretty cool for keeping up with where the various cases are

https://twitter.com/rob99711/status/...867282945?s=20

Direct link to tracker:
https://airtable.com/shrcrC5FsedZqIi...Vf?blocks=hide

[Robotron2k84]

From Mr. Nichols’ 12/1 status update (discussing the mechanics of tomorrow’s discussion conference, to include NYSRPA):

(when voting) [T]he Chief Justice, if he is in the majority, will assign the case to a justice for a decision, or he will write the decision. If the Chief Justice is in the minority, then the most senior justice in the majority decides who will write the decision.

A procedural factoid is that either Chief Justice Roberts or Justice Thomas could join the majority and assign the case to himself and then gut the decision but this does not appear to happen.

https://californiaopencarry.com/stat...carry-lawsuit/

So, there is yet another way to move this case forward, that I was unaware. Interesting.

[wannabefree]

Originally Posted by Fedora

Interesting. I've never thought of it as running away from . . . more like running towards.

This hole conversation is not helpful or important to the topic in this thread.

My main concern is for some of us older folks time is running out and at least my patience is running pretty thin and our choices are to stay and put up with it of move and hope the anti's don't follow us. My instinct tells me that they are gonna chase us no matter were we go. I have no faith in our government leaders to follow the constitution and limited faith in the courts.

Moving on.

[TruOil]

Originally Posted by 1911su16b870

OK I am not a constitutional lawyer or historian, but...on my plain reading of the oral argument transcript, the last line (page 73, line 23) Chief Justice Roberts says "The case is submitted" meaning - the SCOTUS will rule on it.

That's what the CJ says at the end of every oral argument. It does not mean that the mootness motion has been determined adversely to NYC, only that the arguments have been concluded and the case is in the Court's hands for final determination without further briefing or argument.

[Phiremin]

A little game theory…
Let’s assume Roberts has gone soft, regrets Heller and doesn’t really have the appetite to expand gun rights. Would he actually be better off voting against mooting this case?
With Kennedy out and Kavanaugh in, the 4 votes for cert are there for 2A cases. Alito, Thomas and Gorsuch have all expressed frustration over the court declining to take a 2A case through dissent from denials of cert* and Kavanaugh appears to support 2A rights based on his previous opinion.
So, make this moot and there are a pile of “held” cases ready to get cert.
Now let’s say Rogers v Grewel is granted. Now the court must directly take on a right to carry case head on and NJ isn’t going to simply concede a right to carry in order to moot the case. Now Roberts is in a pickle; he must decide on something consequential.
However, by moving forward with NYSRPA, he can focus on the commerce clause, a right to transport (not a big deal) and work hard to water down any enhanced standard of review (ie replace intermediate scrutiny). He can also argue to clear the docket of “held”/pending cases because they are no longer ripe; they need to work their way through the courts given some new standard of review. This buys time. Maybe Trump loses. Maybe Thomas retires and the court goes liberal and the prospect of enhancing gun right is off the table.

*Alito was technically a concurrence in Caetano